[DMCA-Activists] Re: pho: Re: Eldred Day points to the need for a constitutional amendment

[John Parres]

Thanks Gordon for helping fleshing out this notion.

--- Gordon Mohr <address@hidden> wrote:

> Competitors of LucasArts, for example, might win hundreds of millions
> on knockoff Star Wars materials if George Lucas had an "accident", under
> a strict lifetime copyright. All it takes is "one bad apple", someone
> with nothing to lose or overconfidence in their ability to get away
> with a bad act, for creators with large copyright portfolios to be at
> risk. 
>

First, to be precise George Lucas is not the best example here since movies are
generally works-for-hire within a corporate construct.  And corporations as we
know can theoretically live forever.  Any amendment would need to contemplate
this so works-for-hire should also be limited to terms no longer than the
average expected lifespan of people born at the time of a work's creation. But
the point is well taken. 

Thomas Jefferson used actuarial tables to compute a proper term when
negotiating a limit to creative monopolies with James Madison.  In a September
6, 1789 letter to Madison, TJ proposed a term of 19 years based on an actuarial
calculation:

     The question Whether one generation of men has 
     a  right  to  bind another seems never to have 
     been started on this [i.e., the European side --
     Jefferson was writing from France] or our [American] 
     side of the water... that  no such obligation can 
     be so transmitted I think very capable of proof. --
     I set out on this ground,  which I suppose to be 
     self evident, that the earth belongs in usufruct
     to the living; that the dead have neither powers 
     nor rights over it...  A  generation coming in and 
     going out entire... would have a right on the first 
     year of their self-dominion to contract a debt
     for 33 years, in the 10th for 24, in the 20th for 
     14, in the 30th for 4, whereas generations, changing 
     daily by daily deaths and births, have one constant 
     term, beginning at the date of their contract, and 
     ending when a majority of those of full age at that
     date shall be dead.  The length of that term may 
     be estimated from the tables of mortality.  Take, 
     for instance, the tables  of M. de Buffon... 
     [according to which] half of those of 21 years [of 
     age] and upwards living at any one instant of time will 
     be dead in 18 years 8 months, or say 19 years as the 
     nearest integral number.  Then 19 years is the term 
     beyond which neither the representatives of a nation, 
     nor even the whole nation itself assembled, can validly 
     extend a debt...  This principle that the earth belongs  
     to the living, and not to the dead, is of very extensive
     application...  Turn this subject in your mind, my 
     dear Sir...  Your station in the councils of our country 
     gives you an opportunity for producing it to public 
     consideration...  Establish the principle...  in the 
     new law to be passed for protecting copyrights and new 
     inventions, by securing the exclusive right for 19 
     instead of 14 years.

A Jeffersonian computation using life tables from  1992  gives  a
Jeffersonian  copyright term of 30-35 years. (Vital Statistics of
the United States 1992, Volume II--Mortality,  Part  A,  Public
Health Service, Hyattsville, 1996, Section 6, Table 6-1.)

http://digital.library.upenn.edu/books/bplist/archive/1999-02-11$2.html

So perhaps we remain pure to Jeffersonian concerns and tie an amendment to
actuarial tables; I'm would enjoy hearing discussions on this point.

Keying an individual grant to an individual death, however, feels more natural
to me.  Whether any particular creator's life is tragically cut short by an al
Qaeda bomb or she enjoys a full, rich life I start singing (to myself of
course) Dean Kay's "That's Life."

Setting aside the mentally ill Mark David Chapmans of the world, your 'one bad
apple' scenario, Gordon, pertains to music in terminating the songwriter(s) and
/ or performer(s) for economic gain so that another label or broadcaster would
not to have to pay mechanical or performance royalties otherwise due.  I
honestly can't imagine anyone from say Clear Channel authorizing or initiating
such a dastardly deed since the economic incentive for everyone falls equally
to marginal cost in the Internet age (near absolute zero).  The spoils would
benefit both perpetrator and competitor alike and thus a murder for hire would
result in no competitive advantage.  

Which isn't to say that it couldn't happen but again I believe the death
penalty provides sufficient deterrent to any incidental reward.

Indeed, let's flip the argument for the sake of discussion.  Jerry Leiber and
Mike Stoller (not to make it personal but as an example) aren't getting any
younger.  God Bless them, they have created immortal songs which have enriched
our culture, and yet like each of us they cannot live forever (even though
their works will).  But as those esteemed songwriters age and the public domain
becomes ever ominous it creates (no pun intended) every incentive in the here
and now to ensure the good health and longevity of those creators. The world's
best scientific treatments would be employed to extend their lives. A lifespan
term on copy-rights would incent a long-term health care plan especially in the
golden years when it is needed most.

I believe there is something innately spiritual within the creative process. 
Frank Davis asked awhile back in my self-imposed month-long purgatory from Pho
why MTV or Grammy award winners thank the execs at labels, to which I ask more
profoundly "why do they thank God?"  Why does Dean Kay view creative
inspiration as a divine gift?

Larry Lessig may now be second guessing himself from here to eternity (
http://jrobb.userland.com/2002/10/12.html ) because he could not envision a
definition of 'limited' that SCOTUS seeked.  The ball may not be in their
court.  I am suggesting that the most natural definition of 'limited' is one
tied to the most real and universal and divinely equal definition available:
our every existence.

JP



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